Application of Michael Bar-Mordecai - [2013] NSWSC 1252

Supreme Court

New South Wales

Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1252
Hearing dates: On the papers
Decision date: 05 September 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 26 July 2013, is dismissed

Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle
Legislation Cited: Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501;
Attorney-General v Bar-Mordecai [2005] NSWSC 142
Category: Principal judgment
Parties: Michael Bar-Mordecai (A)
Representation: Counsel:
In person (A)

File Number(s): 2013/227823

Judgment - Application under Vexatious Proceedings Act 2008

The Application

On 26 July 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief:

"1. An Order that the Court grant leave to the Plaintiff to extend the timer of filing in order to file his Statement of Claim in spite of the statute of limitation o six years, on an intentional tort of assault, i.e. extend from 6 years to 12 years.

2. An order that the Plaintiff be granted leave to file a Statement of Claim in Supreme Court of NSW seeking compensation and damages from the State of New South Wales for the intentional tort of assault perpetrated in late 2002 by His Honour Justice John Bryson, a retired judge of the Supreme, as the Plaintiff seeks leave on the grounds that he five years out of time.

3. An order that the proceedings be conducted in-camera to protect the privacy of the Plaintiff/victim and the assailant, his Honour Justice John Bryson, such that a Duty Judge in Common Law review documents in-camera to determine if revelation of documents in open Court will be desirable or necessary.

4. An Order that all direction hearings be conducted in-camera by a duty judge without a Duty Registrar or a case management Registrar being involved.

5. That the documents be filed in Court and be kept by the Duty Judge.

6. Costs." (sic)

In support of that Summons, Mr Bar-Mordecai has filed four affidavits, the first being sworn on 26 July 2013, and the second and third each being sworn on 29 July 2013, and the fourth sworn on 20 August 2013.

In addition to these affidavits, Mr Bar-Mordecai has filed submissions on 26 July 2013.

Vexatious Litigant

The applicant, Mr Bar-Mordecai is a vexatious litigant.

On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms:

"1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1252
Decision Date: 05 September 2013

CaseChat Overview and Summary

The case involved an application for leave to institute proceedings by Michael Bar-Mordecai. The dispute centred around the determination of whether the proposed legal action could be classified as vexatious under the Vexatious Proceedings Act 2008. The application was heard in the Supreme Court of Victoria. The court was tasked with assessing the merits of the proposed proceedings and determining whether they were vexatious or lacked a prima facie ground.

The central legal issues before the court were whether the proposed proceedings were vexatious and whether they presented any matter of general principle. The court examined the substance of the proposed claims and the evidence provided by the applicant. It considered whether the proceedings were an abuse of the court's process or whether they had any reasonable prospect of success. The court also assessed if the claims raised any new or significant legal issues that warranted further judicial consideration.

The court found that the proposed proceedings were vexatious. It determined that the claims lacked a prima facie ground and did not present any matter of general principle. The court concluded that the proceedings were an abuse of the legal process and were not warranted. The applicant's claims were considered to be without merit and did not have a reasonable prospect of success. The court denied the application for leave to institute the proceedings.

The Supreme Court of Victoria ruled that the proposed legal action by Michael Bar-Mordecai was vexatious and lacked a prima facie ground. It further held that the proceedings did not raise any new or significant legal issues. The court's decision was based on the assessment of the substance of the proposed claims and the evidence provided. The court's ruling effectively prevented the applicant from proceeding with the intended litigation.

Orders